Like them or not, FINRA is getting the jump on the SEC over issuing guidelines to registered representatives regarding the use of social networking.

FINRA is offering a compliance webinar on December 16, 2009 to cover “compliance and regulatory considerations when using social networking sites to communicate firm business.”

Why FINRA decided to charge $50 for members and $100 for non-members is beyond me. I would think they would want to make this information free to increase compliance with the guidelines set by FINRA. I digress.

CagedTweets is another utility that captures and archives comments posted on Twitter. Customers have three options of service depending on the number of Twitter accounts to be archived. Archiving of one account runs $50 and covers 3 years of service (I think), ten accounts runs $100, and firm-wide archiving runs $500.

Unfortunately their website does not have a demonstration of how the service works, nor is a free trial offered to test the service. Yet I have to hand it to the folks behind CagedTweets; they are offering this service through rapid development after being inspired by an April 27 Wall Street Journal article on compliance requirements involving social media.

Still, I’m inclined to endorse LifestremBackup over CagedTweets for two main reasons. First, the former tool features connections to other social media services in addition to Twitter, and second, the service is offered for a very similar price as CagedTweets.

However, according to their website, users who sign up for CagedTweets before the end of July will receive free archiving for all social media applications added to the service.

Update: LifestreamBackup recently changed its name to Backupify. The points in this post are still applicable despite the name change!

Many advisers who consult with me regarding the use of social media are justifiably concerned about compliance when it comes to using such services. Advisers can use outlets like Twitter, Facebook, and LinkedIn to communicate with others and to broadcast information to targeted niche markets. These tools are fantastic ways to build brand recognition for an adviser or a firm and to identify the level of services offered to the public.

I’ve written here previously how FINRA and the SEC may determine that any message disseminated through social media services constitutes marketing and/or advertising and at the very least should be archived and retained in a compliance file. If you are a representative regulated under FINRA, you likely need pre-approval from compliance before posting any messages through social media services. SEC-registered advisers should consult with their Chief Compliance Officer before posting messages as well.

Now let’s assume that an adviser decides to use social media to grow the business. Terrific! But what can be done to efficiently archive and retain those messages sent through social media services?

This proposal, just barely three weeks old, seems likely to be rescinded according to this Financial Planning article published by Donna Mitchell. In it she writes:

Unofficial reports from the SEC, however, now suggest that the regulator is dropping the third-party compliance audit requirement for advisors, according to the Financial Planning Association’s Web site.

Smarsh continues to impress me as an innovative force and market leader in email archiving and compliance. They recently announced a Smarsh CRM product to help users be more efficient and productive (a post I’ve had in my drafts section ever since my son was born!).

Today I read an article on a new service that may prove to be very useful and timely to the adviser community.

It should be no surprise to financial advisers following the Madoff Ponzi scandal that the SEC recently issued proposed rule changes to custody requirements. The release, IA-2876 (click to view PDF from SEC.gov), addresses custody requirements of client funds and securities and is open for a 60-day comment period through July 28, 2009. Should the proposed rules be adopted, advisers may face additional compliance fees of $8,100 on average.

Surprise Examination Proposal

The SEC proposes that advisers with custody of client assets must undergo an annual surprise examination by an independent public accountant, regardless of whether or not assets are held by a qualified custodian. The premise behind the surprise examination requirement is to provide “another set of eyes” on client assets to prevent fraud and misappropriation of client funds by registered advisers. Reports of theft and fraud by advisers have plagued the SEC since the Madoff scandal erupted in late 2008. So what does this mean for advisers meeting the custody definition?

An increasing number of advisers have asked me about using client login credentials to obtain price, transaction, and balance information for assets held in captive accounts (e.g. a client’s active 401(k) plan that cannot be rolled over until termination from service).

As a benefit to clients, advisers are using client credentials to log in to captive accounts to copy the asset information into portfolio management software (such as PortfolioCenter, Advent, or dbCAMS).

This allows the adviser to generate a consolidated report for the client featuring all of his/her assets. In addition, advisers can include the captive account assets in fee calculations if management of those assets is included in the asset advisory agreement with the client.

Now that some precedent has been set, albeit by a completely different body (i.e. the NBA), I suspect that the SEC might not be too far behind in stepping up its enforcement efforts by following the tweets of registered advisers.

My advice to registered advisers: Tweet with extreme caution.

Want to Know More?

Andy Gluck at Advisor Products, Inc. is hosting a webinar this Friday, April 3 featuring Brian Hamburger of Market Counsel to address the compliance issues of using social networking technology, including LinkedIn, Twitter, FaceBook and others.

If you’re interested in learning more about this subject, I highly recommend you register now! This session has the potential to reach the maximum number of participants allowed.

I’m going to open up a topic that has the potential to create a bit of controversy. Here’s my bold statement:

Investment advisers registered under the SEC who use the “Recommendations” feature of LinkedIn.com may be in violation of Rule 206(4) of the Investment Advisers Act of 1940.

I’ve discussed this topic with several members of my local financial planning community, including investment adviser litigation defense attorneys. More recently the topic has come up in discussions with other professionals I have connected with through Twitter, including Susan Weiner, CFA and Kristen Luke.